A Handbook of Contemporary Research
Edited by Graeme B. Dinwoodie and Mark D. Janis
Chapter 12: Restricting allusion to trade marks: a new justification
11 Truth and advertising: the Lanham Act and commercial speech doctrine Rebecca Tushnet Commercial speech, defined roughly as speech that proposes a marketplace transaction, has been easier for the government to regulate than noncommercial speech throughout the development of the modern First Amendment. The commercial/noncommercial divide has long been controversial, and several current Supreme Court Justices have suggested their willingness to abandon the distinction, given the importance of commercial speech to modern social, economic and political life.1 Distinguishing between commercial and noncommercial speech creates definitional problems.2 Yet the alternative of treating all falsifiable claims alike might be far less palatable, especially when we consider the range of commercial speech that is currently regulated to protect consumers against false or misleading claims.3 In particular, the Lanham Act and its state counterparts in trademark and unfair competition law could be profoundly affected if courts were to equate commercial speech with political speech. The difficulties could only be resolved by invalidating a large amount of modern trademark and advertising law or by recalibrating First Amendment standards in some core areas. But even if the Supreme Court preserves the commercial/noncommercial distinction, we need a better account of how to deal with informational speech that helps some people but deceives others. As it stands, there are significant mismatches between the approaches of free speech law and unfair competition law. In the past, courts have denied First Amendment protections to advertisers in trademark and false advertising cases, reasoning that trademark and false 1 See, e.g., 44...
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